California Lobbies to Keep Wait for Gun Buys

SAN FRANCISCO (CN) - California on Tuesday asked the Ninth Circuit to overturn a trial court's finding that the state's 10-day waiting period for firearm purchases is unconstitutional.

A federal judge found for lead plaintiff Jeff Silvester, who argued that the law is unconstitutional. But at Tuesday's hearing before the Ninth Circuit's three-judge panel, the state contended that the statute holds up under intermediate Second Amendment scrutiny.

The law - which is intended to reduce impulsive gun violence and to allow retailers sufficient time to conduct thorough background checks on purchasers - "imposes a modest time delay on acquisition of firearms, not a prohibition," California Deputy Attorney General Jonathan Eisenberg said.

Although the state came forward with evidence "in abundance" that the law survives the intermediate scrutiny standard, Eisenberg said the district court "held the state to a standard akin to strict scrutiny, looking for a perfect fit between the regulation and the objective to be achieved."

He added that the length of the statutory waiting period has been fine-tuned over a period of more than 80 years since its adoption in 1923, and that "the Legislature should be applauded for doing that kind of modifying to the law."

Circuit Judge Mary Schroeder pointed out that the frequent adjustments could be taken to suggest that the law is not very functional.

Bradley Benbrook, who practices in Sacramento, argued for the plaintiffs and contended that if the state's automated firearms system shows that a firearm purchaser already has a firearm and passes a background check, "delay for delay's sake is not a reasonable fit."

"It's a simple theory and simple works in this case," Benbrook said.

Chief Circuit Judge Sidney Thomas asked Benbrook whether a background check would be sufficient to vet second-time purchasers if there were new information to indicate that they should not be allowed to buy another firearm.

"For subsequent purchasers, we're saying apply the full monty," Benbrook replied, adding that his clients have "no quarrel" with the 10-day waiting period for first-time purchasers.

Circuit Judge Jacqueline Nguyen asked why the plaintiffs take issue with the treatment of all gun seekers as first-time purchasers, especially given "the deficiencies in the system."

Benbrook conceded that the state's system is not perfect but added that "perfection is not the standard in any constitutional litigation."

This led Nguyen to counter, "But the state is saying this is a reasonable way to plug those holes," and Benbrook answered that even the law assumes the system is accurate.

"The entire regulatory regime is constructed on the idea that the information in the system is accurate," Benbrook said. "What's the point of having these systems if you say that for some purchases we trust them and for some purchases we don't?"

Thomas asked Benbrook to "spell out" how he would view his requested injunction playing out in practice if implemented. He pointed out that the primary burden on the plaintiffs, as argued, seemed to be the requirement of a second visit to the gun store.

"But that would be true under the injunction, wouldn't it?" Thomas said.

Benbrook argued that the substantial burden is the wait itself, since "the delay of taking possession is a burden on the exercise of the right." He added that it would be "substantially overbroad" to apply the waiting period to people who, for example, walk into the store with a gun already in their pocket.

In his rebuttal, Eisenberg said that the relief the district court afforded will not allow a firearm purchaser to avoid the second trip to the store except in possibly 20 percent of cases.

He also pointed out that his argument did not "denigrate" the state's automated firearm computer systems - it was just "being realistic about what the computer systems can do."

"They're not these magical things, as plaintiffs seem to be implying," Eisenberg said. "The state is just trying to make sure that the systems are used realistically and that they are not used for purposes for which they are not designed."

The panel did not indicate how or when it expects to rule.

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